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Wednesday, 2 May 2012

Statement on dependent judiciary in West Bengal

Banglar
Manabadhikar Suraksha Mancha (MASUM), an initiative of human rights activists
working mainly to minimise torture by the state agencies from our society. In
this process we are extending medical, legal, social and psychological support
to the victims of torture. We are implementing a programme under the aegis of United
Nations Voluntary Funds for Victims of Torture (UNVFVT).

We,
MASUM is supporting the victims of torture / killings by the people in uniform in
37 cases running in different criminal courts of West Bengal since last 3 years
where petitions under sections 156(3) of Criminal Procedure Code in respective
judicial magistrate’s courts were filed and accepted. The need to file those
petitions under section 156(3) of Criminal Procedure Code was that the police
refused to register complaints against the accused Border Security Force /
police personnel and also the district Superintendent of Police did not act in
spite of receiving complaints against the erring police officials of their
refusal to take appropriate legal action against the accused BSF personnel.

The
settled principle of law that the police are bound to register an FIR whenever information
disclosing cognizable offence is received was violated in each cases for which
petitions under section 156(3) of Criminal Procedure Code were filed therefore
praying before the concerned magistrate of sending those complaints to the
respective police stations for registering FIR against the accused BSF / police
personnel.

It
is our mixed experience that the some of those petitions were allowed by the
concerned judicial magistrate and some of them were rejected. The concerned
Magistrate set forth reasons for such rejection that the ordinary criminal
court has no power to permit prosecution against Border Security Force. It is hereby worthy to mention that the Chief
Judicial Magistrate, Berhampore, Murshidabad district earlier allowed some
petitions to be treated as FIR against accused BSF personnel and the same court,
later rejected three petitions on the ground that the ordinary criminal court
has no power to permit prosecution against Border Security Force.

On
the other hand the Additional Chief Judicial Magistrate, Lalbagh, Murshidabad
allowed petitions under section 156(3) of Criminal Procedure Code to be treated
as FIR against the accused BSF personnel almost in the same time.

Under
such experience on 27.4.2012 our advocate went to Basirhat Court district North
24 Parganas to move two petitions under sections 156(3) of Criminal Procedure
Code before the Additional Chief Judicial Magistrate, Basirhat, North 24
Parganas. In one petition (being case no. C 496/2012) the complainant was Ms. Selima
Gazi whose husband was allegedly stabbed and tortured by the accused BSF
personnel on 25.8.2011 and since then she has no clue of his whereabouts. So
the complaint was filed under sections 323 / 324 /325/ 326/ 341/ 201/ 211/ 307/
34 of Indian Penal Code. In another petition (being case no. C 497/2012) the
complainant was Mr. Abdur Rahman who along with other five men were brutally
assaulted and criminally intimidated on 22.8.2011 by the accused BSF personnel.
So the complaint was filed under sections 323 / 324 /341/ 504/ 506/ 34 of
Indian Penal Code

During
hearing both the complainants stood before the court and the concerned
Additional Chief Judicial Magistrate, Basirhat heard the advocate appeared for
the complainants. After hearing the cases the said concerned judicial
magistrate kept pending her decision and later on the same day the advocate
came to know that those petitions were rejected and no reason was recorded in
the case records for such rejection.

From
the above observations it is clear that the presiding officers of the concerned
courts in state of West Bengal acting under the same law delivered different orders
on the complaints where the complainants filed petitions seeking prosecution
against the accused perpetrator BSF / police personnel. It is true that the
courts have the power to exercise discretion while passing order but such
discretion must be fair, just and reasonable. But the disparity of judicial orders
shown in such 37 cases vividly establishes that the judiciary is insensitive in
committing fair and equal justice towards the victims of torture and
extra-judicial executions in the hands of the accused people in uniform.
Moreover, discretion does not mean typified pro- government stance and in this
case more precisely echoing the position taken by the police.

We
are also concerned with some recently happened incidents in West Bengal where
it appears that the judiciary failed to apply its judicial supervision over
gross violation of rights and framing of innocent persons in concocted police
cases initiated by police which is still an active arm of the state atrocities.
We recently came across the heinous incident of the arrest of eight (8)
Mahatama Gandhi National Rural Employment Guarantee Scheme (MGNREGS) workers
from Lakhanpur Gram Panchayet, Hura Block, Purulia district on23rdApril 2012. The facts have emerged
that this arrest is a means by which the administration and Panchayat want to
suppress any protest against their own corruption and illegality in
implementation of MGNREGS. At present the workers have been remanded to jail
custody for 15 days up to8thMay
2012 by order of the court, causing huge problems for them and their families,
as all of them are daily wage earners.

The
recent incident of Nonadanga eviction and suspicious police action is still
afresh in our memory where numbers of persons are still languishing in jail.
The media reports vividly highlighted the incidents of police torture happened
during and subsequent to the eviction. It is noticeable that the some activists
and eminent persons are framed in criminal charges for protesting against the
said eviction drive. The judiciary before which such criminal cases are pending
is merely passing orders on wish of public prosecutor and police who are
ultimately acting by the instruction of government. The judiciary is reluctant
to take any judicial notice of violation of people’s rights in any way in such
cases. Recently, 11 evictees being
arrested from the site while protesting illegal eviction drive and demanding
proper rehabilitation, were sent to police remand till 3rd of May.

It
is invariable that individual rights guaranteed under the law against the
arbitrary action of the state are bound to fail if we do not have a strong
judiciary and will be forced to live not under the rule of law but under the
rule of state arbitrariness.

We
hope that our esteemed judicial system will take notice of our legitimate
concern and show a fair legal attitude towards the victims of torture and extra
judicial executions in the hands of the state agencies and provide fair and
equal justice both in papers and practice thereby prevail the rule of law. The
recent happenings in judicial process, out rightly laced up with the
governmental stand of curbing dissent voices and thwarting of human right
practices. The government in West Bengal likes its predecessor squeezing
democratic space in society and numbing independent authorities and in this
process unduly maneuvering judiciary and this act became a threat for
democratic and non partisan functioning of state affairs. Independent judiciary
is not a reality in our country and human rights fraternity is demanding for
the same for quite long, in this regard MASUM vehemently protested against
keeping and maintaining of judicial records and writing the judicial orders by
police in West Bengal but recent uncaring attitude shown by a section of
judicial officers further hampered the long cherished goal of judicial
independence in the state.